April 23, 2009

The case, brought by white firefighters in New Haven who were denied promotions after an examination yielded no black firefighters eligible for advancement, featured claims of race discrimination on both sides. It was, Justice David H. Souter said, a “damned if you do, damned if you don’t situation.”

Had the city allowed the promotional exam to stand, Justice Souter said, it would have faced a lawsuit from black firefighters. When it threw out the test, promoting no one, it was sued by 18 white firefighters, one of them Hispanic, who claimed race discrimination.

The city said that throwing out a flawed test was a racially neutral act. Because no one was promoted, the city said, no one was singled out on the basis of race. But Justice Antonin Scalia was having none of that.

“It’s neutral because you throw it out for the losers as well as for the winners?” he asked. “That’s neutrality?”...

The city “looked at the results, and it classified the successful and unsuccessful applicants by race,” Justice Kennedy said to Edwin S. Kneedler, who represented the federal government. “And then you want us to say this isn’t race? I have trouble with this argument.”...

Chief Justice John G. Roberts Jr. [asked] the lawyer for New Haven, Christopher J. Meade. “Why is this not intentional discrimination?” Chief Justice Roberts asked. “There are particular individuals here,” he continued, “and they say they didn’t get their jobs because of intentional racial action by the city.”

Mr. Meade said the city should be afforded protection because it was trying to comply with a federal law.

Read the whole thing. This is genuinely a complicated problem, as the Breyer hypotheticals at the end of the article demonstrate.

I admit up front I do not know all the details of this case. But didn't the city use a test that had been devised by an organization that specializes in developing tests that are free of racial preferences?

Besides, it is a test about firefighting and management - what does race have to do with those issues?

We have strayed so far from merit-based achievement.

And after stories like this, how can anyone look at a black firefighter or police officer and know without a doubt that they got to where they are based on their capabilities?

I'm curious whether the test has been used before and if so what the racial makeup of the top performers was. If it achieved what is viewed as an adequate racial mix of potential promotees, then it's hard to argue that the test is flawed, and much easier to claim that the problem lied in the minority applicants themselves.

For real life human beings this is not complicated. Gov't should not be choosing between people based on race, period.

It's complicated here because previous Sup Ct decisions looked around for pnumbras and emanations and emoticons and fairies and decided that - oh look - it would be ok to discriminate based on race, as long as we discriminate against white people. Especially if it's only against white male people.

Yeah, first we discriminated against black people and that was evil, so it would balance things out if we perform a second evil and punish white people (who, incidentally had NOTHING to do with the sins agains blacks) too for awhile.

This is where this kind of activist Sup CT BS gets you. They should have said the obvious a long time ago (was Bakke the first case? I forget). Gov't cannot discriminate based on race. Period. Really, not complicated at all. It's called equal protection. Might even be in the Constitution. Wait, I'll check my copy. YES, there it is.

The problem is only complicated if you think that skin pigmentation rivals merit in importance.

I hate this stuff. Imagine being a black guy who earns everything on his own merits, but because of the efforts of race hustlers, you are forever suspected of being a product of affirmative action. That would be incredibly frustrating.

Plus, it's hard to argue that the assumptions implicit in affirmative action aren't racist. How is support of affirmative action not tantamount to saying, "People like you can't possibly make it on your own?" It's a destructive lie.

The implications are deep and tricky, but as far as the actual case goes, you couldn't possibly decide for the city, could you? Allowing people to suspend the results of a test after it has been performed is just an invitation to discriminate.

Once the test has been administered, the veil of ignorance has been pierced. You know who will benefit from the opportunity to retest and who will lose.

Imagine being a black guy who earns everything on his own merits, but because of the efforts of race hustlers, you are forever suspected of being a product of affirmative action. That would be incredibly frustrating.

It is only complex because the law is such a mess. It should be very simple - this was a generalized test and some people did well. Maybe all the smart black folks in New Haven decided to become cops or teachers instead of firefighters. Maybe the school system in black neighborhoods suck. Maybe the black candidates figured they could cruise by on grievance mongering and did not study as hard - who know, and who cares?

Had the city allowed the promotional exam to stand, Justice Souter said, it would have faced a lawsuit from black firefighters. When it threw out the test, promoting no one, it was sued by 18 white firefighters, one of them Hispanic, who claimed race discrimination.Would the city be free to discriminate in order to avoid a potential lawsuit under normal circumstances? How is the situation changed here?

Maybe the real problem is that the disparate impact standard is too vague, and provides an incentive to discriminate behind closed doors in order to make the numbers work out right.

If you were completely cynical about this, you'd emulate the Michigan Law School case from a few years ago and use as many factors as you can. Then as long as the numbers end up reasonably balanced, nobody can prove nothing.

It's complicated because we have embraced certain racial preferences as benevolent policy, thinking that government can make a distinction between good race preferences and bad race preferences. But government can't do this. Plus there's that little problem with the Constitution.

I just hope that Souter, Stevens, Breyer when they get really ill - and Ginsburg, who is..have their care done by "people who are qualified enough, though they didn't do as well on all the exam stuff".

Race normed, qualified enough doctors....disparate results eliminated.Just as good as the practice of doing it on firefighters and government workers nation wide.

My guess though, is when it comes down Ruthie - or Teddy, for that matter, dealing with what is happening in his head - as members of the Ruling Elite, only the best will do when it comes down to live-saving services.Meaning they only get doctors with first names like Skip, Hoshimatu, Saul, and Deneesh.

Breyer's hypotheticals don't impress me: they're apples and oranges. If you suspend tenure requirements, presumably you're not suspending them for women only while preventing men from being approved. That's what the fire department did. If you make the Texas high school threshold 15 percent, you're not throwing out the Asian kids in the top 15 percent, are you? That's what the fire department did with these tests.

His hypotheticals are a dodge. If you did use those methods in that way to hold back those specific individuals, it would be be just as odious as this case is and not a difficult call at all.

I don't think it is that complicated of a problem. Either the test is race neutral or it is not. The fact that no black firefighters from this sample didn't pass it doesn't mean that it is not race neutral. If the test is certified as race neutral before it is given, the fact that no black firefighters passed it in one year should not invalidate the results. If no black firefighters has passed the test for several years in a row, then perhaps the certification should be reconsidered.

But that is not what happened here. Instead, the Department didn't get the results it wanted in the first year, so it threw the results out. That is a defacto quota since any test that doesn't produce the desired percentage of black promotions gets thrown out.

I would be curious to hear an employment lawyer's view of the issue of whether one year's results can be read to be a "disparate impact". If it could, and I wouldn't be surprised if it did, then it just shows that "disparate impact" is nothing but code for quota and it puts lie to all of the liberal assurances that the Civil Rights Act banned quotas that were given back in 91 when the Civil Rights Act was reauthorized.

In those areas in which blacks excell, merit is the sole and best criteria of choice. There is no groundswell of opinion to have the sprinters on the US Olympic team reflect the diversity of America.....No one would seriously argue that blacks do not produce more than their share of talented musicians. Nonetheless most classical orchestras have few black members (and are over-represented with Asians). For whatever reason, most black musicians do not channel their energies into classical music. As most of the fame and the money is centered in pop music. there's no more outcry against this than in the fact that the US Olympic equestrian team is lily white....There are civil service positions in nursing and human resources in which blacks are over represented. Perhaps if these professions were given the respect given to other services the issue would be moot.

The closest we get -- after her trademark megalink -- is, "This is genuinely a complicated problem."

Really? You think? I would love to hear your expert take on these complications, especially when so many of your readers and commenters seem to think there is nothing complicated about the question at all.

Must every Althouse post be an installment of "Here's an incendiary topic -- along with something pithy from me. Now have at it! (And if you're good, I'll quote you later.)"

Souter is playing a shell game here. The stadard is not if the Department "could be sued". You can always be sued. The standard is would the Department been violating the law if it had allowed the test results to stand. Put in labor law terms, does the administering of a test which in one year results in no black employees being promoted constitute an actionable disparate impact. If the answer is yes, then the Department was legally compelled to throw out the results and the plaintiffs have no case. If the answer is no, then the Department was enforcing an illegal quota system on promotions and the plaintiffs should prevail.

Incidentally a good outcome in medicine is sometimes more dependent on the kindness of the practitioner than in his brains. In like way, a good outcome in fire fighting is sometimes more dependent on the physical courage and dexterity of the practioner than upon his ability to take civil service exams.

Look if the test is a bad test, then get rid of the the test. But if you administered it as tool for promotion, then you need to be good on you word. I get that the firefighting departments, nationally, have been bastion of discrimination. People are right to be horrified by that. By how is it that no one is horrified that not a single black firefighter did well enough on the test to qualify for a promotion.

People should have the right to compete in this country-- not the right to win. I'm not indifferent to changing the way these guys do hiring. But you can't do it like this. This is just stupid and hamfisted.

Yes, William, that may be true, but it's always a little suspicious that those rationales are always discovered after first attempting the testing route. And then for some reason it is invariably found that the qualities of "kindness" or "courage", which of course cannot be neutrally measured but are judged subjectively, are found disproportionately in the group that happened to be disfavored by the tests. Amazing coincidence, that.

This is the excuse that colleges used to discriminate against Asians 35 years ago. Then the Asian kids started up an extra-curriculars arms race to match their GPA arms race. So colleges had to just throw out everything and flat-out admit that they just want people who look a certain way (diversity). At least that's a little bit honest.

"In like way, a good outcome in fire fighting is sometimes more dependent on the physical courage and dexterity of the practioner than upon his ability to take civil service exams."

-I agree - and you should be aware that written exams for things like firefighting were introduced at the lower levels as a way of giving women, who are generally less physically able (though they may be "good enough", snort-laugh) a shot. That said, we are talking about a test for Lts and Cptns here - entry-level management positions, where it makes sense to have a written component, as pushing paper is no doubt a significant part of the job.

To analogize to the Army, you usually don't promote the most talented machine gunner or the best driver to lead the platoon - and often those folks are happy where they are - generally you are looking to promote leaders who are good generalists at the more physical tasks, while having some genuine charisma and an aptitude for book-lernin.

The standard is would the Department been violating the law if it had allowed the test results to stand.

-Probably not, but they would have been sued and it would have cost a lot to find out that they were not in violation of the law. If politicians and judges won't stand up to the diversity-hustlers, why should we expect that some low-level civil servant will?

"Probably not, but they would have been sued and it would have cost a lot to find out that they were not in violation of the law. If politicians and judges won't stand up to the diversity-hustlers, why should we expect that some low-level civil servant will?"

I am sorry, but I don't see how "someone might have sued me" is an excuse to violate someone's rights.

No one said all decisions were previously made on merit alone. That's a strawman.

AA has done nothing good. It has benefited some people at the expense of other, more qualified, and totally innocent, people. Meanwhile, it has established race as an acceptable element of hiring, as long as the then-current favored persons are benefitted. In addition, it has unfairly stigmatized many well qualified blacks and hispanics and women who've made it solely on their own.

I think that the wrong question was asked, and hope that they get it right before the decision. What we are doing here is balancing the Constitution against an agency's interpretation of a statute. And in that case, what has to give is the agency's interpretation of the statute.

There is a significant slippery slope if a government entity is given immunity from liability when it violates a Constitutional mandate in order to comply with an agency's interpretation of a statute. Where does it end? This was done in apparent response to a Bush (43) era agency interpretation. Just wait until the race baiters in the current Administration get full control of that agency. That theory would seem to immunize the state actors from pretty egregious Constitutional violations.

"In like way, a good outcome in fire fighting is sometimes more dependent on the physical courage and dexterity of the practioner than upon his ability to take civil service exams."True, but that's not the issue here. New Haven discarded the test results because they didn't produce enough promotions for African Americans, not because they would have promoted cowards or clutzes.

I think William missed this was to hire experienced firefighting professionals into management of people and situations, not hire grunt "nozzle-men" where courage and dexterity count a lot. In fact, all the potential hirees for Fire Captain and Lt have been through that grunt phase.

Now they are seeking a position of supervising many people, with significant admin, emergency scene command responsibilities. With life and death decisions that rest on good knwledge and judgment, ability to assemble info fast and think on their feet.

Or people could die.Or people could be needlessly risked, property inadvertently destroyed.Or you have a fire company with poor team capacity, not managed well, or budgets blown..

As a volunteer and someone that had to have all his folks in the military fire-trained, I know it requires lots of study, a large command of facts...situational awareness, leadership...and that poorly qualified ones that got there through nepotism, connections - can be a true menace to the men and the public. An adjacent town's volunteer corps collapsed on the sheer boobery of two fire officers the town saw fit to hire and have command over, and do all the paperwork and training of the volunteer network....

It also wasn't written exams, it was oral exams that added up to a cumulative score.

Stuff you just have to know collectively as a team - and confidence that if you have a senior moment and just forget, you have 2-3 others with equally good knowledge and judgment to back you up or correct you.

Candidates: You are asigning crew to hose down and cool a 750 liguid gallon propane tank near a fire. List minimum safe distance to approve crew action and safeguard their lives: 25M, 50M, 100M, 220M ??

Candidates: You have an engine truck that needs prompt pump repair. You need to assign Overtime. Driver A, B have poor repair skills but are low in OT this year. B lower than A, but Driver A is somewhat better at repairs. Driver C has excellent skills but tops the OT list. Fireman 2nd Class Daphne has repaired pumps in her previous job with municipal Water Works and has little OT. Under prevailing union agreements, who do you assign?

Candidates: You receive a call from a ladder truck and fire company EMT ambulance dispatched to the scene of an accident that it involves an overturned truck that has spilled medical waste, including two containers marked radioactive. Which agency must be notified by you in the next 15 minutes, by law?(1)State Hazmat; (2)State Police; (3)Both the Mayor and Governor's Office; (4) Federal Nuclear Regulatory Commission.

I am a firefighter. In the sort we do (urban-wildland interface) what they call the Lieutenant/Captain level has correlative levels in the Incident Management system. The people who are first-rate at commanding complex incidents (large geographic areas with simultaneous grass-fires and forest fires and many threatened structures, obstructed evacuations, poorly predicted weather, hundreds of firefighters and dozens of engines of different types) have to be

-- brilliant at logistics-- able to carry a 3D map in mind and visualize windflows through it-- defensively capable at multi-tasking -- technically extremely well-schooled in fire behavior (which, to condense very much, tends to pass through an inflection point from linear to exponential)-- very smart with paper (rules, cooperative agreements, burn prescriptions, mitigation plans)-- swift and egoless with decisions-- uncannily incisive at seeing almost instantly into the heart of an incident: one glance and they know that this incident needs a chopper on air standby, that one needs the largest wreckers in the metro area, this one will develop a need for 6 handcrews a couple hours from now, that one needs all the type 6s that can be summoned and the type 1s should just go home, that one needs SEATs and slurry bombers.

These guys are smart, and those of us on the fire line do not want them to be dolts, no matter their color.

What we're getting at here - cf Cedarford above - is what role we as a society want to accord to competence. It's the blind surgeon/spastic pilot problem. We're engaged in a society-wide experiment to displace competence in the name of 'compensation' or 'justice' and find out empirically where competence matters - or used to matter. Most of the time the result is weary irritation: you run into yet another person who doesn't know their job, doesn't care about their job, and will never be removed from their job. Sometimes - the fire service has its examples - the penalty is death, though generally for line personnel rather than supervisors; see https://lists1.safesecureweb.com/archives/firenet/2004-December/000177.html.

-I agree - and you should be aware that written exams for things like firefighting were introduced at the lower levels as a way of giving women, who are generally less physically able (though they may be "good enough", snort-laugh) a shot. That said, we are talking about a test for Lts and Cptns here - entry-level management positions, where it makes sense to have a written component, as pushing paper is no doubt a significant part of the job.Don't know firefighting, but it seems to me that the skill set for a LT or CPT, (I assume these roles are shift supervisor and station boss) would be the same as for a mid grade Platoon SGT.

- a certain amount of common sense leadership and HR skill set- the ability to handle paperwork, duty rosters, performance reports, inventories, etc- the physical and mental toughness to keep going in dificult situations- the ability to make good (not perfect) decisions rapidly and confidently in stressful situations

"What we're getting at here - cf Cedarford above - is what role we as a society want to accord to competence. It's the blind surgeon/spastic pilot problem. We're engaged in a society-wide experiment to displace competence in the name of 'compensation' or 'justice' and find out empirically where competence matters - or used to matter. Most of the time the result is weary irritation: you run into yet another person who doesn't know their job, doesn't care about their job, and will never be removed from their job. Sometimes - the fire service has its examples - the penalty is death, though generally for line personnel rather than supervisors"

What has to be kept in mind here is that the same people who are trying to convince us that they can run the economy, etc. better than we can by putting in the best people, are also the same people who are pushing affirmative action.

What we're getting at here - cf Cedarford above - is what role we as a society want to accord to competence.That's really not the question. The question is whether we really want to enforce the Constitutional requirement of equal protection under the law, ie. that gov't is required to treat individuals equally regardless of race, religion, etc.

Incidentally, private parites/citizens are a whole nother story. IMHO, if a private university or business wishes to discriminate based on race (either way), that should be allowed under freedom of association (otherwise known as freedom). I suspect most people disagree.

Freeman Hunt observed, I hate this stuff. Imagine being a black guy who earns everything on his own merits, but because of the efforts of race hustlers, you are forever suspected of being a product of affirmative action. That would be incredibly frustrating.

Well, it's a good thing our president doesn't have this problem. No worries whatsoever. He wasn't elected on his own merits but strictly as a product of racism.

RD, I disagree that affirmative action has done no good. I know some great women and minority health care professionals that benefitted from extra money and support from their schools and training programs as part of AA programs.

These were top notch, qualified people before AA, they came out even better in part due to the financial and educational opportunities they were afforded. True, they were given special treatment based on their minority status, but these are high functioning people we are talking about. I think that subsidizing the rise of the minority upper class professionals in the 60s and 70s was in this example successful.

Not that there were not problems and misapplications that beg the question as to whether the net effect was positive or negative.

And there must be a time when preferential hiring and subsidies stop, or even larger problems arise.

But I can think of outstanding minority professionals who benefitted from AA, and more than a few. But I am not sure how much of AA is baby and how much is bath water.

I disagree that affirmative action has done no good. I know some great women and minority health care professionals that benefitted from extra money and support from their schools and training programs as part of AA programs.

And you don't know the even better male and non-minority health care professionals, because you never got a chance to meet them. They were denied money and training in favor of the less-capable but politically-favored affirmative action recipients you ended up meeting, and thus didn't get a chance to excel in that field.

For each person helped by affirmative action, a minimum of one person is hurt -- the more-qualified person who missed out on the benefit that went to a less-qualified person.

we could go back to "separate but equal" and the black community to get the proper color fire fighters even if they can't pass the tests.

I don't see that as a great outcome.It's not a great outcome, but it's a pragmatic outcome. Many minorities are racist. And to a certain extent, government has to accept people as they are, not as they would like them to be. If same-race police and firefighters are markedly more effective, well, we can sit here dreaming about how to mould the Volk into the New Soviet Man, or we can accept that lots of people respond better to people of the same race, particularly in high-tension situations, e.g. with police and firemen.

The twists and turns of anti-discrimination law and political correctness have forced public discourse on the subject into some astonishingly idiotic poses. But if we really had an open racial spoils system, and were frank about it -- none of these mealy mouthed justifications for racially discriminatory policies -- would I really object all that hard?

I'd probably grumble about such a system, but it would at least have the virtue of being honest, and the virtue of being defensible on practical, if not moral, grounds.

Maybe "separate but equal" public services would be an improvement, although I seriously doubt it.

But it doesn't actually matter if they would be an improvement or not, because they are Constitutionally forbidden. So why bother discussing it? We'd have to repeal the 14th amendment first, and nobody's willing to do that.

(1) It's not permitted under current 14th amendment jurisprudence, which isn't all that old, all things considered. (2) there's no reason to make it separate. Just have one force and be sensitive about local perceptions (viz. racism) when putting together your patrols or whatever. That's what they do in Singapore, no? That or they have Gurkha's keep the peace everywhere, I can't remember which.